De Brito & Anor v Secretary of State for the Home Department

For permanent residence under the Immigration (EEA) Regulations 2006, a worker temporarily unable to work because of illness remains a worker and qualifying person. A worker whose activity has ceased because of permanent incapacity may qualify under regulation 5(3), provided the residence conditions are met.

Whether incapacity is temporary or permanent is an objective question. The decision-maker must consider all available evidence, including whether there were realistic prospects of returning to work and remaining engaged with the labour market. The worker’s own belief may be relevant, but cannot determine the issue alone. Continuous absence from work is not conclusive.

The appellants, Portuguese nationals, sought permanent residence cards under the Immigration (EEA) Regulations 2006. The first appellant had worked in the United Kingdom before stopping work because of illness. His wife’s and son’s applications depended on his entitlement.

The applications were refused. An Immigration Judge allowed the appeals, but the Upper Tribunal allowed the Secretary of State’s appeal, set aside that decision and concluded that the required qualifying residence had not been established. The son later withdrew his appeal. The central issue was whether the first appellant’s absence from work after 29 July 2005 was temporary or resulted from permanent incapacity, and whether he consequently qualified under regulation 15(1)(c).

1. Appeal dismissed. Lord Justice Pitchford gave the judgment, with which Lord Justices Hooper and Mummery agreed.
2. The interaction between regulations 6(2)(a), 5(3) and 15(1)(c) was correctly identified in Secretary of State for the Home Department v FB [2010] UKUT 447 (IAC). A worker temporarily unable to work because of illness remains a worker under regulation 6(2)(a), and periods of inactivity due to illness are treated as periods of activity under regulation 5(7). A person who terminates activity because of permanent incapacity is not retained as a worker under regulation 6, but may qualify under regulation 5(3) and regulation 15(1)(c) if the statutory conditions are met.
3. The phrase terminating activity as a result of permanent incapacity requires an objective assessment. It does not require a subjective decision by the worker to end employment, although the worker’s understanding may be relevant. The words as a result of require attention to the objective state of affairs, rather than solely to the worker’s belief or intention. The relevant period began when employment ceased on 29 July 2005.
4. The operative question is whether, on all the evidence relating to the worker’s health, there were realistic prospects of returning to work and remaining engaged with the labour market. Medical evidence may assist, but each case depends on the evidence available. Continuous absence does not automatically establish permanent incapacity. A temporary absence may be followed by a different condition causing permanent incapacity, while an apparent permanent incapacity may depend on the success of corrective treatment.
5. The Upper Tribunal applied the correct test and was entitled to find that the first appellant had not shown a realistic prospect of returning to work after 29 July 2005. The evidence of chronic osteomyelitis, unsuccessful surgery and the absence of supporting medical evidence justified that conclusion. The Immigration Judge’s findings were inadequately reasoned, and the Upper Tribunal was entitled to rehear the factual issues. No error of law was established.

• Court of Appeal (Civil Division): dismissed the appeal against the Upper Tribunal’s determination.
• Upper Tribunal (Immigration and Asylum Chamber): on 2 February 2011, allowed the Secretary of State’s appeal, set aside the Immigration Judge’s determination and found that the qualifying residence requirement had not been established.
• Immigration Judge: allowed the applications on 23 March 2010.